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>Date: Tue, 17 Apr 2001 13:36:12 -0700 (PDT)
>From: John Parres <johnparresATyahoo.com>
>Subject: pho: /.: How Corporate Lobbyists Colonized the Net
>Here's to more exploding piggy heads on Pho,
>How Corporate Lobbyists Colonized the Net
>Posted by JonKatz on Tuesday April 17, AT10:30AM
>from the -the-rape-of-copyright-laws- dept.
>In the mid 90s corporate lobbyists, panicked by file-sharing on the Net,
>succesfully manipulated Congress into passing watershed laws -- the Digital
>Millenium Copyright Act prominent among them -- that radically changed
>copyright law. These laws tilted the system of distributing ideas, culture and
>intellectual property towards the needs and interests of corporations, and
>from centuries-old principles protecting freedom and an open culture. In
>Digital Copyright, Jessica Litman, a Wayne State Univerity professor and
>widely-recognized expert on copyright law, calls these laws "horrific" and
>details just how easy it has become for informational networks to monitor and
>restrict what people can see, hear and read. Publishers, movie studios, record
>companies and other content owners -- especially rich ones -- successfully got
>laws enacted that use technology to ensure they get paid whenever their works
>are used or transmitted. These new laws, Litman argues, are not only invasive,
>they corrupt the purpose of copyright and damage the free flow of ideas. (Read
>You don't need to be a copyright lawyer to get the basic idea: U.S. Copyright
>laws begin with the premise that neither the creator of a new work nor the
>general public ought to be able to appropriate all the benefits that flow from
>the creation of a new work. If creators can't make some money off of their
>creations, they have no incentive to create. If distributors can't earn some
>money from the works they distribute, they may not bother to distribute.
>But all creators -- authors, musicians, artists, individuals -- borrow raw
>material to build their works. Novelists, sculptors and programmers, Litman
>points out, incorporate ideas, language, code, building blocks and expressive
>details they first encountered elsewhere.
>If creators were given control over every element and use of everything they
>made, there would be no raw material left for others. The threat of legal
>action and liability would enter the creative process at every level. The flow
>of ideas could decrease or even dry up, caught in legal struggles and bounded
>by economic and other costs. The idea of American copyright was to give
>enough protection so they would keep cranking out new ideas, but limit that
>protection so that the flow of ideas would be enhanced. In terms of the
>vigorous movement of ideas and opinions, the idea worked well for more
>Thus, writes Litman in Digital Copyright, "both as a matter of fairness and as
>a matter of promoting learning by encouraging authors to create works and the
>public to consume them, copyright has always divided up the possible rights in
>and uses of a work, and given control over some of those rights to the
>and distributors and fix others to the general public."
>It is precisely this principle that corporate lobbyists destroyed when
>Congress to pass new kinds of copyright laws specifically in response to the
>growth of the Net and the complex challenges to existing intellectual property
>conventions that it posed. Because of the pinpoint precision of software data
>tracking and collection, these new laws theoretically require everyone to pay
>for every bit of every creative work they access, use or transmit. As the
>Napster flap demonstrates, the end result is that corporations benefit -- not
>artists, whose access to ideas is severely limited, or the general public,
>which now has no legal right to freely control or distribute any part of the
>creative works they access.
>Corporate lobbyists made it a federal crime to transmit any part of a
>copyrighted work. In addition, the DMCA held site operators liable for all the
>damages incurred if any part of copyrighted works were transmitted over their
>As a matter of policy, Litman writes, these shifts in copyright law have
>Setting the basic "compensable" unit of copyright (which is also the basic
>infringing unit) at the level of the (ephemeral) copy in volatile memory of
>your desktop computer involves the fundamental operation of computers in
>copyright on what is essentially an "atomic" level. (Most of you reading this
>know this, but in case some don't -) And since a computer works by reproducing
>data in its volatile Random Access Memory -- RAM -- so anything that exists in
>volatile memory could theoretically be saved to disk -- the appearance of any
>portion of a work in any computer's RAM is a reproduction within the
>federal copyright law.)
>"It means," Litman writes, "that all appearance of works in computers -- at
>home, on networks, at work, in the library -- needs to be effected in
>conformance with, and with attention to, copyright rules. That's new. Until
>now, copyright has regulated multiplication and distribution of works, but it
>hasn't regulated consumption."
>It does now.
>If you buy a book, or even borrow one, you can read it as many times as you
>like. You can lend it or rent it to a friend, sell it or give it away. You
>can't legally make copies of it, but you can use it as many times as you want.
>But if every time a work appears in RAM, you are making an "actionable copy,"
>then for the first time copyright owners have been given almost total control
>over the consumption of their works. Each time you open Microsoft Word to edit
>a document, you could eventually need Microsoft's permission. Each time
>your computer's CD-ROM drive to listen to a CD you bought, you need a license
>from the record company. Every time you view a Web page with a picture of
>Mickey Mouse, you need permission from Disney.
>That is the direction in which laws like the DMCA are taking us, Litman says,
>and it's not accidental. That's the agenda of corporate copyright lawyers, who
>are largely unopposed in Congress or Washington. Hackers and other digital
>enthusiasts have long viewed cyberspace as unpoliceable and governable -- too
>big, individualistic and complex. Corporate lobbyists disagree: They see the
>Net as a potentially lucrative colony, over which incalculable amounts of
>copyrighted information can eventually be distributed at enormous profit. And
>they've taken signficant steps to conquer it.
>When Congress passed the Communications Decency Act, cyber-liberties
>organizations were in an uproar. But few groups online paid much attention to
>the intense lobbying underway -- mostly out of sight -- involving copyright.
>The public had no real sense that Congress was passing laws that would put
>copyright owners in a position to claim exclusive "reading", "listening," and
>"viewing" rights to copyrighted works.
>When copyright laws were initially passed, government was trying to protect
>individual authors. But most copyrighted material is now distributed by giant
>media conglomerates. The whole context in which copyright was originally
>conceived has changed, yet there seems little consciousness of this new
>in Washington or among political parties and interests.
>Litman's is one of the best, clearest, most cogently organized and accessible
>books yet written on the travesty that is the DMCA, which President Clinton
>blithely signed into law while the Tech Nation dozed. The DMCA is the price a
>culture pays for ignoring politics, and we'll be paying for this legislation
>for a long time to come.
>Copyright owners' enforcement strategies have mostly been limited to threats,
>litigation and ham-handed public relations and media campaigns aimed at
>convincing Americans that they ought to disapprove of unauthorized use. While
>that strategy can work against a specific target like Napster, or
>intermediaries like a college or large company (since these large targets have
>assets to be threatened by litigation), it works far less well in deterring
>individuals. In fact, says Litman, a variety of new applications
>instance) have popped up to permit individuals to wantonly violate these new
>laws, and the wave of copyright lawsuits has only encouraged this trend.
>Napster recently topped 62 million registered users, few of whom believed they
>were thieves, suggesting the DMCA wasn't a law with much popular support.
>Yet eventually, in order to fully enforce the rights that content owners now
>claim, it will be necessary to go after individual consumers. Noncompliance
>becoming endemic, even institutionalized, would become the single most
>important factor in determining the fate and future of copyright. Litman
>observes that people don't obey laws they don't believe in.
>Litman also points out in Digital Copyright that the conflict over the
>copyright on the Net is being fought in the usual way: "Representatives of
>private interests are simultaneously jockeying for advantage while offering to
>sit down at the bargaining table and negotiate a deal that they find
>satisfactory. Senators and representatives make general pronouncements about
>the importance of the issues raised and the need to find the right answer,
>while assuring the various interests that their doors are open and they would
>be delighted to broker a negotiated solution."
>Litman used to believe that bad copyright law derived from lack of
>congressional expertise of the issues involved -- especially complete
>of the Net and the Web -- or a lack of interest in the details. But she
>a different, more ominous conclusion. "More and more," she writes, "it seems
>likely that at least many of the legislators who seek to promote
>consensus are hoping to score a substantial portion of the money being poured
>into copyright lobbying."
>Litman's book is bleak. The only ray of hope she sees is consumers' widespread
>noncompliance. She points out that the battle is lopsided, to say the least.
>Individuals and individual rights have few lobbyists in Washington.
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